Appearances are deceiving: the constitutional conflict is not about ‘migrants’
The Court of Justice of the European Union (CJEU) ruled last December that the indiscriminate push-back of asylum-seekers to Serbia was in breach of EU law. However, the Government did not abandon the illegal practice, but instead responded with another violation: following the Polish model, it intends to use the Hungarian Constitutional Court as a means of evading the enforcement of a binding CJEU judgment.
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The attempt fits into the illiberal trend which seeks to undermine the foundations of European integration and the primacy of EU law. The Hungarian Helsinki Committee filed an amicus curiae, a supplementary legal submission with the Hungarian Constitutional Court in order to protect human rights and the respect of EU law. The Constitutional Court must rule on a fundamental issue that goes far beyond the question itself.
In our submission, we point out that political interests must not override fundamental human rights, including EU law prohibiting torture. We are convinced that it is not the fair asylum and immigration procedure that is unconstitutional, but the destruction of the rule of law and European integration.
EU judgment unenforced
In a far-reaching judgement in December 2020, the CJEU ruled that the Hungarian law allowing for the push-back of asylum-seekers from all over the country to the Serbian side of the border fence without initiating any formal procedure is against EU law
The ruling is important not only for the protection of the rights of refugees, but for the rule of law as a whole. It confirms that a State authority must treat people who turn to it in accordance with the law, and not arbitrarily.
The CJEU’s ruling is clear; and Hungary, as a member of the EU must abide by it. However, the Government wants to use the Constitutional Court as a tool to openly defy EU law. In February, Minister of Justice Judit Varga filed a motion with the Constitutional Court. In it, she asked the Court to rule that the judgment of the CJEU cannot be enforced in Hungary.
It is not a private matter for the Government
This is very dangerous for two reasons.
On the one hand, the foundation EU law is its primacy over national law. In other words, if there is EU law in an area, a national law to the contrary cannot be adopted and applied. This is not only important from an asylum point of view, but also cuts to the bone of free movement of services, capital and people. The foundations of European integration are being destroyed by those who do not want EU law to be as strong here in Hungary as in other Member States.
On the other hand, the Government’s initiative seeks to establish the constitutional basis for the further weakening of human rights. In this respect, hiding behind the Constitutional Court (packed with several Government loyalists) is very advantageous for illiberal regimes. They do not view human rights as a value to be protected, but as an obstacle to the unlimited exercise of power. The Polish Government has embarked on an incredibly tough, unprecedented conflict with the EU over judicial independence, and Hungary is now preparing for a similar clash over the rights of asylum-seekers.
The Hungarian Government wants a free hand in everything
However, if the judgements of the CJEU on the rule of law and fundamental rights can be overridden by restrictive domestic judgments, it will only depend on the self-restraint of governments what they use this power for. In this respect, the Hungarian Government has proven more than once that it does not shy away from an opportunity to restrict fundamental rights.
This conflict therefore is not about ‘migrants’, but about the right to override a final CJEU judgement defending human rights with another domestic verdict at the discretion of the losing government.
The Government expects the Constitutional Court to state that the CJEU judgment protecting human rights is contrary to the Hungarian Fundamental Law (Constitution).
According to the Hungarian Helsinki Committee, this is a conceptual impossibility: the protection of human rights cannot be in conflict with the Fundamental Law. According to both EU law and the Fundamental Law, human rights cannot be subordinated to the political will of the government.
We also described this in our submission to the Constitutional Court. We hope that the Court will not serve the illiberal dream of the Government because it would not only harm Hungary, but the EU as a whole.
by Zsolt Szekeres